Whetstine v. Wilson

Merrimon, C. J. — after stating the' facts: The complaint was oral and informal — such as is allowed in the Court of a Justice of the Peace, where this action began. The cause of action was not alleged as founded upon a special contract, but upon a quantum meruit for work done for the intestate of the defendant in his lifetime and at his instance. The evidence relied on in support of the plaintiff’s cause of action, accepted as true, as it must be for the present purpose, fairly interpreted, did not prove an unwritten special contract on the part of the plaintiff to do labor for the intestate of the defendant, and, in consideration thereof, on the part of the intestate, to convey to the plaintiff the land mentioned. It was not so agreed in terms, nor by reasonable implication. The intestate agreed on his part,- that “ if they (the plaintiff and his wife) would come to his place in Burke County, and would live on it and take care of him; he (the plaintiff) should have all the land,” &c When should he have it? At once, upon the so going of the husband and wife? It is nbt at all probable the intestate intended to part with the title to the land before they had. taken “ care of him,” or that they understood, or expected; that he would do so; such is not the reasonable implication. He was an old man— that is a fair inference; he wanted — needed some one — his daughter particularly — to take care of him, and indefinitely, while he lived The terms of the contract are general and indefinite, but the just implication of it was, that if the plaintiff and his wife would “take care of” the intestate, as contemplated, he would make a will and therein devise the land mentioned to plaintiff. He did not make a will; he [388] did not perform his part of the contract at all; he was in default, and hence, if the plaintiff and his wife did service for him, as contemplated by the contract, or did service which he accepted and had benefit of, the plaintiff is entitled to reasonable compensation for such service. As the intestate failed to perform his part of the special contract, the law implied a promise and obligation on his part to pay the plaintiff reasonable compensation for the services rendered by him in pursuance of it. Miller v. Lash, 85 N. C., 51; Jones v. Mial, 82 N. C., 252. It does not appear that the plaintiff and his wife were living in, and as members of, the family of the intestate, and no presumption arises that the services rendered by them were not to be paid for as such. The plea of the statute of limitations cannot avail the defendant. The wife of the plaintiff was not a necessary party plaintiff in the first action mentioned. The present plaintiff was the plaintiff in that, as well as the present one, and the cause of action was the same, substantially, in both. The statute was not a bar to the first action, and as this one was begun within twelve months next after the non-suit in the former one, it is unaffected adversely by the lapse of time. The Code, § 100 ; Martin v. Young, 85 N. C., 156. The judgment of nonsuit must be set aside and a new trial allowed. Error.